Citation NR: 9602601
Decision Date: 02/05/96 Archive Date: 02/16/96
DOCKET NO. 94-9 074 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether the veteran is competent for Department of Veterans
Affairs (VA) purposes.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Appellant and her spouse
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Associate Counsel
INTRODUCTION
The veteran had active service from September 1965 to April
1966.
In a rating decision dated in December 1972, the Regional
Office (RO) determined that the veteran was incompetent for
VA purposes from October 1972. The current appeal arises
from a rating decision dated in May 1993 in which the RO
addressed the veteran's claim that she was competent. The RO
denied the claim finding that the veteran was incompetent for
VA purposes; and the veteran perfected a timely appeal of
that decision. In July 1995, a hearing was held at the RO
before the member of the Board of Veterans' Appeals (Board)
who will decide this case. The case is now ready for
appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that she is able to manage
her own affairs, including her finances, without limitation,
and is therefore competent for VA purposes.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the record supports the veteran's claim
that she is competent for VA purposes.
FINDINGS OF FACT
1. All relevant information necessary for an equitable
disposition of the appeal has been developed.
2. The veteran is not adequately shown to lack the mental
capacity to contract or to manage her own affairs, including
the disbursement of funds, without limitation.
CONCLUSION OF LAW
The veteran is competent for VA purposes. 38 U.S.C.A. § 5107
(West 1991); 38 C.F.R. § 3.353 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the claim that the veteran is competent
for VA purposes is "well-grounded" within the meaning of 38
U.S.C.A. § 5107, that is, the claim is plausible, meritorious
on its own or capable of substantiation. Murphy v.
Derwinski, 1 Vet.App. 78 (1990). The Board further finds
that VA has met its duty to assist in developing the facts
pertinent to the veteran's claim. 38 U.S.C.A. § 5107.
The Board notes that the veteran is receiving VA compensation
benefits. She is evaluated as 100 percent disabling for non-
psychotic organic brain syndrome due to circulatory
disturbance, cerebral thrombosis.
A mentally incompetent person is one who, because of injury
or disease, lacks the mental capacity to contract or to
manage her own affairs, including disbursement of funds
without limitation. Unless the medical evidence is clear,
convincing and leaves no doubt as to the person’s
incompetency, no determination of incompetency will be made
without a definite expression regarding the question by the
responsible medical authorities. Where there is doubt as to
whether the beneficiary is capable of administering her own
funds, such doubt will be resolved in favor of competency.
38 C.F.R. § 3.353.
The medical evidence pertinent to the current claim that the
veteran is competent for VA purposes includes a VA medical
record dated in December 1993. According to that record, the
veteran's brain damage impaired her memory and judgment and
caused her to be impulsive and easily suggestible. However,
the examining psychiatrist did not make a determination
regarding the veteran's competency. Another VA record dated
in November 1992 shows that that examiner described the
veteran's deficits in “executive function” as worrisome but
reported that the veteran was probably competent to handle
her own financial affairs. Also, a VA report of the results
of neuropsychological testing in April 1993 shows that while
the examiner found that the veteran was chronically weak in
math she appeared competent per the test results. The Board
also finds the veteran’s hearing testimony that she paid
bills on time and balanced her checkbook particularly
probative for the purposes of demonstrating a capacity to
manage her own funds.
Thus, the medical evidence pertinent to the current claim is
certainly not clear, convincing and without doubt as to the
veteran's incompetency; nor is there a finding by the
responsible medical authorities that the veteran is
incompetent. Therefore, the Board finds that veteran does
not lack the mental capacity to contract or to manage her own
affairs, including the disbursement of funds, without
limitation. Accordingly, the Board finds that the veteran is
competent for VA purposes. 38 C.F.R. § 3.353.
ORDER
The appeal is granted.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
- 2 -